Monday, December 24, 2012
A.G. Says Judges Retired Due to Disability May Only Administer Oaths While Sitting on Assignment
By KENNETH OFGANG, Staff Writer
A judge who has voluntarily retired due to disability may administer oaths, but only while serving on assignment, Attorney General Kamala Harris has concluded.
“The Commission has asked us to determine whether judges who take voluntary disability retirement may subsequently be empowered to administer oaths generally, or whether—as is true for other judicial functions—such a judge may only perform oaths while sitting on assignment, after having being reinstated by the Commission for that purpose,” the attorney general explained. “We conclude that a judge who has voluntarily retired for disability may not later be empowered to administer oaths generally; but if the judge is found by the Commission to be capable of judicial service and is thereafter assigned to a court by the Chair of the Judicial Council, the judge may administer oaths while sitting on assignment.”
The attorney general, in an opinion requested by the Commission on Judicial Performance and made public yesterday, said the distinction between assigned and non-assigned judges, and between judges who have retired due to disability and those retired based on age and service, is mandated by different statutory schemes.
Disability retirement, the attorney general noted, may be either voluntary or involuntary. A judge seeking disability retirement must apply to the commission, whose recommendation must be approved by the chief justice, while involuntary retirement may be ordered by the commission, subject to discretionary review by the Supreme Court.
The relevant statutes, Harris explained, are Code of Civil Procedure Sec. 2093(c) and Government Code Sec. 1225, which permit former judges—other than those “retired by the Supreme Court for disability”—to administer oaths if the commission certifies that the judge did not retire or resign with disciplinary proceedings pending; and Government Code Secs. 75060.6 and 75560.6.
The latter sections establish a process for the recall on assignment of judges voluntarily retired for disability and under 65 years of age.
The statutes allow the CJP to order any such judge to submit to a physical examination. If the results show that the judge is no longer incapacitated, the commission may certify that the judge is able to sit on assignment, and may require the judge to choose between doing so and giving up his or her disability pension.
Although the statutes provide for a commission-initiated process, the CJP has established a policy allowing judges who have taken disability retirement but wish to sit on assignment to request certification.
Were Secs. 2093 and 1225 to be read literally, judges who were voluntarily retired for disability could have the right to administer oaths restored, unless they retired with disciplinary charges pending, without having to prove current capacity and without agreeing to sit on assignment, Harris noted. But that is not the case, she explained, because to do so would conflict with the intent of Secs. 75060.6 and 75560.6.
If Secs. 2093 and 1225 “were construed to apply to judges who have voluntarily retired for disability, they would effectively negate the medical examination requirement of the restoration statutes with respect to the power to administer oaths,” the attorney general reasoned. “This would subvert the policy of protecting the public from judges whose disabilities make them unfit for judicial office. Construing the oath provisions to apply to judges who have voluntarily retired for disability would also undercut the restoration statutes’ express limitations on the circumstances under which restored judges may administer oaths.”
The opinion, No. 10-804, was prepared for Harris by Deputy Attorney General Diane Eisenberg.
Copyright 2012, Metropolitan News Company